Being an IP attorney in a virtual world environment can be really interesting. Lately, questions have arisen about copyright and digital mesh wireframe works — a question that an appeals court considered just a few years ago, just in a different context. The different context has the potential to really make a difference, but before we get there, we need to lay some ground work.

What makes something copyrightable?

In the United States, a creator automatically gets copyright in an original work the moment it is fixed in a tangible medium of expression. In other words, you don’t get a copyright for the things you’re just thinking of doing — you have to write them down, draw them up, put them in a form that can be reproduced first. We can talk about fixation another time, though. Right now, let’s talk about originality.

What does it mean for a work to be original? Well, the threshold is very low. Copyright may be granted to works that possess “at least some minimal degree of creativity.” And while that’s a very low threshold, it’s an extremely important one, and it gets to the entire philosophy behind the granting of copyright protection in the United States.

Before the Supreme Court articulated the “minimal degree of creativity” standard, there had been many arguments for why we should grant copyright protection to people who create works, and what we, as a society, should reward. One powerful argument was the “sweat of the brow” argument: that if a creator puts a lot of work and effort into a creation, that work should be rewarded with copyright protection. It was this argument that the Supreme Court rejected in setting the creativity standard: mere labor isn’t enough. The hard work of, for instance, arduously researching and compiling the phone book is not enough for copyright protection: there is no creativity involved.

So what’s not creative?

What about photographs? A photograph can be a creative work, sure. But it can also not be, for the above reasons. If a photographer takes a photograph that is intended to be an exact copy, as much as technology will allow, of another work (for instance, a photograph of a painting in a museum), the photograph doesn’t add any creative elements. It’s not copyrightable.

And then there are digital mesh works. In the 2008 case Meshwerks v. Toyota Motor Sales U.S.A., a court held that wireframe computer models of Toyota cars, intended to re-create the cars as exactly as possible, were not entitled to copyright protection. It didn’t matter how many hours of labor went into creating the models. It didn’t matter how much it cost to create them. They did not have that spark of creativity.

Does this mean all digital mesh wireframe models lack that spark of creativity? Does this mean no digital mesh models can be eligible for copyright protection? Probably not. But the ones in that case were not entitled to protection because they were a faithful copy of something that already existed. We can understand this a little better if we look at the law around derivative works.

Derivative works

A derivative work is an adaptation or modification of an existing work (that you have permission to use). For instance, if I draw a moustache on the Mona Lisa and present it as a new piece of art, that’s a derivative work. But is it mine? The Mona Lisa isn’t mine. I didn’t paint her. I did paint the moustache, though (we will pretend, for the sake of argument, that I am totally Marcel Duchamp). For a derivative work, I can only have copyright protection in the original content I have added. I can’t have copyright protection in the entire work unless my own contribution is enough to merit protection on its own (so in this case, just drawing a moustache probably isn’t enough — I don’t know if L.H.O.O.Q. was ever granted an independent copyright).

How does this apply to digital mesh in virtual worlds?

Digital mesh wireframes in virtual worlds, then, are going to be one of three things:

Completely original works

As-close-as-possible reproductions of already existing items

Reproductions of existing items, with changes made.

Let’s get more specific.

Most mesh creations in virtual worlds such as Second Life are going to be original, or somewhat derivative but still mostly creative. Most mesh creations are not only the wireframe object, though: they’re also the texture that goes on top, which will depict decisions the creator made: color choices, lighting and shadow choices, creative choices. Those choices establish copyrightability.

However, the difficult questions arise in the context of mesh objects without textures (or with blank textures, designed to wear other creators’ textures). Mesh bodies and body parts, for instance, are (almost) all going to be reproductions of the SL avatar mesh. That’s the technical limitation of mesh bodies in Second Life. Every mesh body creator will make small tweaks to personalize the body, to make it in some way better than the SL avatar mesh, to give it life that the avatar mesh does not have.

And that’s the crux of it, for those of you who have stuck with me through this whole post: those small tweaks. Those small tweaks on a digital mesh wireframe derivative work of the SL avatar mesh. Whether they, by themselves, rise to the level of copyright protection is going to vary from creator to creator, and is probably something a creator would want to work with the Copyright Office on.